Before the Securities and Exchange Commission; Securities Exchange Act of 1934; In the Matter of the Options Clearing Corporation; Corrected Order Denying Motion for Stay, 44238-44239 [2017-20080]
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Federal Register / Vol. 82, No. 182 / Thursday, September 21, 2017 / Notices
proposed rule change operative upon
filing.22
At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is: (i) Necessary or appropriate in
the public interest; (ii) for the protection
of investors; or (iii) otherwise in
furtherance of the purposes of the Act.
If the Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
should be approved or disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
GEMX–2017–42 on the subject line.
asabaliauskas on DSKBBXCHB2PROD with NOTICES
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–GEMX–2017–42. This file
number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of
22 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
VerDate Sep<11>2014
17:52 Sep 20, 2017
Jkt 241001
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–GEMX–
2017–42 and should be submitted on or
before October 12, 2017.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.23
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017–20088 Filed 9–20–17; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[File No. SR–OCC–2015–02; Release No.
81628]
Before the Securities and Exchange
Commission; Securities Exchange Act
of 1934; In the Matter of the Options
Clearing Corporation; Corrected Order
Denying Motion for Stay
September 14, 2017.
On February 11, 2016, the
Commission issued an order (‘‘Approval
Order’’) approving the Options Clearing
Corporation’s (‘‘OCC’’) plan for raising
additional capital (‘‘Capital Plan’’ or
‘‘Plan’’) to support its function as a
systemically important financial market
utility.1 BOX Options Exchange LLC,
KCG Holdings, Inc. (‘‘KCG’’), Miami
International Securities Exchange, LLC,
and Susquehanna International Group,
LLP (collectively ‘‘petitioners’’) 2 filed a
petition for review of the Approval
Order in the U.S. Court of Appeals for
the District of Columbia Circuit (‘‘D.C.
Circuit’’), challenging the Commission’s
Approval Order as inconsistent with the
Exchange Act and lacking in the
reasoned decisionmaking required by
the Administrative Procedure Act.
After filing their petition for review,
petitioners filed a motion for a stay in
the D.C. Circuit asking the court to stay
the Commission’s Approval Order
pending the court’s review. The D.C.
Circuit denied petitioners’ request for a
stay.3
23 17
CFR 200.30–3(a)(12).
Act Release No. 77112 (Feb. 11, 2016),
File No. SR–OCC–2015–02.
2 BATS Global Markets, Inc. (‘‘BATS’’) was
initially a petitioner, but later withdrew.
3 The petitioners had also opposed OCC’s motion
to lift the automatic stay in place pending the
1 Exchange
PO 00000
Frm 00088
Fmt 4703
Sfmt 4703
In ruling on the petition for review,
the D.C. Circuit concluded that the
Approval Order did not ‘‘represent the
kind of reasoned decisionmaking
required by either the Exchange Act or
the Administrative Procedure Act,’’ and
therefore remanded the case to the
Commission for further proceedings.4 In
so ruling, the court did not reach any of
petitioners’ arguments that the Plan was
inconsistent with the substantive
requirements of the Exchange Act,
finding instead that the Commission’s
failure to make the required findings
under the Act required a remand.5
The court also considered whether to
vacate the Approval Order prior to
remand, and decided not to vacate. As
the court explained, ‘‘the SEC may be
able to approve the Plan once again,
after conducting a proper analysis on
remand.’’ 6 Because both parties had
assured the court that it would be
possible to unwind the Capital Plan at
a later time, and ‘‘no party contends that
the task would be materially more
difficult if done then rather than now,’’
the court declined to vacate the Capital
Plan and instead remanded the case ‘‘to
give the SEC an opportunity to properly
evaluate the Plan.’’ 7 The D.C. Circuit’s
mandate, which issued on August 18,
2017, returned the matter to the
Commission for further proceedings.8
Petitioners 9 now seek a partial stay of
the Capital Plan—specifically, a stay of
the dividend payments to be made to
the shareholder exchanges under the
Plan—while the Commission considers
the Plan as directed by the D.C. Circuit.
OCC opposes the motion.
In determining whether to grant a stay
motion, the Commission typically
considers whether (i) there is a strong
likelihood that the moving party will
succeed on the merits of its appeal; (ii)
the moving party will suffer irreparable
harm without a stay; (iii) any person
will suffer substantial harm as a result
of a stay; and (iv) a stay is likely to serve
Commission’s review of the Capital Plan. The
Commission found, however, that it was ‘‘in the
public interest to the lift the stay during the
pendency of the Commission’s review.’’ Exchange
Act Release No. 75886 at 2 (Sept. 10, 2015), File No.
SR–OCC–2015–02. The Commission noted that it
‘‘believes that the concerns raised by Petitioners
regarding potential monetary and competitive harm
do not currently justify maintaining the stay during
the pendency of the Commission’s review.’’ Id.
4 Susquehanna Int’l Grp., LLP v. SEC, 866 F.3d
442, 443 (D.C. Cir. 2017).
5 Id. at 446.
6 Id. at 451.
7 Id.
8 By separate order of today’s date, we are issuing
a scheduling order governing the proceedings on
remand.
9 Petitioner KCG has not joined the instant
motion.
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Federal Register / Vol. 82, No. 182 / Thursday, September 21, 2017 / Notices
asabaliauskas on DSKBBXCHB2PROD with NOTICES
the public interest.10 The party seeking
a stay has the burden of establishing
that relief is warranted.11 These factors
weigh against granting petitioners’ stay
request.
First, with respect to likelihood of
success on the merits, we note that the
court did not address petitioners’
arguments that the Plan was
inconsistent with the Exchange Act.
Rather, it remanded for the Commission
to ‘‘properly evaluate the Plan.’’ 12 By
repeating their same arguments
regarding consistency with the Act in
support of a stay, petitioners are asking
the Commission to opine on their
likelihood of success before engaging in
the further analysis directed by the
court. We are not yet in a position to do
so. Unlike the more typical situation in
which the Commission addresses stay
motions, here there is neither a full
record nor a final decision on which to
base such an analysis. Thus, we do not
view this factor as weighing in favor of
the partial stay request.
Second, petitioners fail to establish
that they will be irreparably harmed in
the absence of a stay. To demonstrate
irreparable harm, petitioners ‘‘must
show an injury that is ‘both certain and
great’ and ‘actual and not
theoretical.’ ’’ 13 ‘‘A stay ‘will not be
granted [based on] something merely
feared as liable to occur at some
indefinite time.’ ’’ 14 That ‘‘an applicant
may suffer financial detriment does not
rise to the level of irreparable injury
warranting issuance of a stay.’’ 15
Petitioners acknowledge that the
monetary aspects of the Plan ‘‘are
readily reversible’’ 16 and that the court
concluded that ‘‘the task of unwinding
10 Bernerd E. Young, Exchange Act Release No.
78440, 2016 WL 4060106, at *1 (July 29, 2016); see
also Order Preliminarily Considering Whether to
Issue Stay Sua Sponte and Establishing Guidelines
for Seeking Stay Applications, Exchange Act
Release No. 33870, 1994 WL 17920, at *1 (Apr. 7,
1994).
11 Young, Exchange Act Release No. 78440, 2016
WL 4060106, at *1.
12 866 F.3d at 451.
13 Kenny A. Akindemowo, Exchange Act Release
No. 78352, 2016 WL 3877888, at *2 (July 18, 2016)
(quoting Donald L. Koch, Exchange Act Release No.
72443, 2014 WL 2800778, at *2 (June 20, 2014));
accord Wis. Gas Co. v. FERC, 758 F.2d 669, 674
(D.C. Cir. 1985).
14 Akindemowo, 2016 WL 3877888, at *2 (quoting
Koch, 2014 WL 2800778, at *2); accord Wis. Gas
Co., 758 F.2d at 674.
15 Robert J. Prager, Exchange Act Release No.
50634, 2004 WL 2480717, at *1 (Nov. 4, 2004); see
also William Timpinaro, Exchange Act Release No.
29927, 1991 WL 288326, at *3 (Nov. 12, 1991)
(recognizing that ‘‘[m]ere injuries, however
substantial, in terms of money, time, and energy
necessarily expended in the absence of a stay, are
not enough’’ to constitute irreparable harm)
(quoting Va. Petroleum Jobbers Ass’n v. FPC, 259
F.2d 921, 925 (D.C. Cir. 1958)).
16 Mot. at 1.
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17:52 Sep 20, 2017
Jkt 241001
the Plan would be no more difficult if
done after remand rather than
immediately.’’ 17 They nonetheless
argue that ‘‘[a] stay of the dividend is
needed to prevent distortion of the
competitive landscape from continuing
to harm competition.’’ 18 But petitioners
provide no evidence that competitors
will be ‘‘driven from the marketplace’’
or that investors have ‘‘lost liquidity,’’
as petitioners claim.19 Thus, petitioners’
argument—which presumes they are
correct on the merits regarding the
Plan’s effect on competition—is too
speculative at this stage to be the basis
for relief. We also note that petitioners
made these same arguments regarding
competitive harm before the D.C.
Circuit, yet the court did not stay or
vacate the Plan.
Finally, petitioners have not
demonstrated that the balance of harm
to others in the absence of a stay and the
public interest favors a stay. Petitioners
argue that ‘‘a stay would injur[e]
nobody,’’ 20 because they are asking
only to stay the dividend component of
the Plan. But even setting aside the
impact on shareholder exchanges that
are due the dividends under the Plan,
petitioners’ claim that the dividend
component of the plan can be isolated
is overly simplistic. Under the Plan,
‘‘OCC would not be able to pay a refund
on a particular date unless dividends
were paid on the same date.’’ 21 A stay
of the dividends to the shareholders
would thus have the effect of also
staying the payment of refunds to OCC’s
members.
Moreover, as discussed above, the
court squarely considered whether to
vacate the Plan or leave it in effect
during the Commission’s
reconsideration, and decided to leave
the Plan, including the provisions with
respect to dividends, in place.
Petitioners’ request to stay that part of
the Plan therefore, in fact, seeks a
change in the status quo that we believe
is unsupported at this time. Granting
petitioners’ request would require
piecemeal suspension of portions of the
Plan, while leaving others in place,
despite at least the possibility of having
to reinstitute those provisions at a later
17 Mot.
at 16.
18 Id.
19 Id. Petitioners cite the acquisition of BATS by
CBOE Holdings, Inc.—which, we note, closed on
February 28, 2017—in support of their argument,
stating that there has been consolidation in the
exchange marketplace while the Capital Plan has
been in effect. But they supply no evidence of a
causal relationship between that acquisition and the
Capital Plan or the dividends at issue.
20 Mot. at 16.
21 Exchange Act Release No. 74136 (Notice of
Proposed Rule Change) at 15, File No. SR–OCC–
2015–02.
PO 00000
Frm 00089
Fmt 4703
Sfmt 4703
44239
date if the Commission, after conducting
the required analysis on remand, should
determine to approve the Plan. Indeed,
the court implicitly rejected this type of
partial stay when petitioners proposed it
in a pre-decision letter to the court 22
and the court remanded without
entering such a stay. We believe, as the
court did, that the better course is to
leave the status quo in place while we
conduct a further review of the entirety
of the Plan.
Accordingly, we decline to impose
the partial stay requested.
For the reasons stated above, it is
hereby:
Ordered that movants’ request for a
partial stay of the Capital Plan while the
Commission considers the Plan
pursuant to the direction of the D.C.
Circuit is Denied.
By the Commission.
Brent J. Fields,
Secretary.
[FR Doc. 2017–20080 Filed 9–20–17; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[File No. SR–OCC–2015–02; Release No.
81629]
Before the Securities and Exchange
Commission; Securities Exchange Act
of 1934; In the Matter of the The
Options Clearing Corporation For an
Order Granting the Approval of
Proposed Rule Change Concerning a
Proposed Capital Plan for Raising
Additional Capital That Would Support
the Options Clearing Corporation’s
Function as a Systemically Important
Financial Market Utility; Corrected
Order Scheduling Filing of Statements
on Review
September 14, 2017.
On February 11, 2016, the
Commission issued an order (‘‘Approval
Order’’) approving the plan of the
Options Clearing Corporation’s (‘‘OCC’’)
for raising additional capital (the
‘‘Plan’’) to support its function as a
systemically important financial market
utility.1 BOX Options Exchange LLC,
KCG Holdings, Inc., Miami International
Securities Exchange, LLC, and
Susquehanna International Group, LLP
(collectively ‘‘petitioners’’) 2 filed a
22 See Fed. R. App. P. 28(j) letter from petitioners,
dated April 17, 2017 (asking the court ‘‘at a
minimum, to stay operation of the dividend
component of the Plan during a remand’’).
1 Exchange Act Release No. 77112, File No. SR–
OCC–2015–02.
2 BATS Global Markets, Inc., was initially a
petitioner, but later withdrew.
E:\FR\FM\21SEN1.SGM
21SEN1
]]>Agencies
[Federal Register Volume 82, Number 182 (Thursday, September 21, 2017)]
[Notices]
[Pages 44238-44239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20080]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[File No. SR-OCC-2015-02; Release No. 81628]
Before the Securities and Exchange Commission; Securities
Exchange Act of 1934; In the Matter of the Options Clearing
Corporation; Corrected Order Denying Motion for Stay
September 14, 2017.
On February 11, 2016, the Commission issued an order (``Approval
Order'') approving the Options Clearing Corporation's (``OCC'') plan
for raising additional capital (``Capital Plan'' or ``Plan'') to
support its function as a systemically important financial market
utility.\1\ BOX Options Exchange LLC, KCG Holdings, Inc. (``KCG''),
Miami International Securities Exchange, LLC, and Susquehanna
International Group, LLP (collectively ``petitioners'') \2\ filed a
petition for review of the Approval Order in the U.S. Court of Appeals
for the District of Columbia Circuit (``D.C. Circuit''), challenging
the Commission's Approval Order as inconsistent with the Exchange Act
and lacking in the reasoned decisionmaking required by the
Administrative Procedure Act.
---------------------------------------------------------------------------
\1\ Exchange Act Release No. 77112 (Feb. 11, 2016), File No. SR-
OCC-2015-02.
\2\ BATS Global Markets, Inc. (``BATS'') was initially a
petitioner, but later withdrew.
---------------------------------------------------------------------------
After filing their petition for review, petitioners filed a motion
for a stay in the D.C. Circuit asking the court to stay the
Commission's Approval Order pending the court's review. The D.C.
Circuit denied petitioners' request for a stay.\3\
---------------------------------------------------------------------------
\3\ The petitioners had also opposed OCC's motion to lift the
automatic stay in place pending the Commission's review of the
Capital Plan. The Commission found, however, that it was ``in the
public interest to the lift the stay during the pendency of the
Commission's review.'' Exchange Act Release No. 75886 at 2 (Sept.
10, 2015), File No. SR-OCC-2015-02. The Commission noted that it
``believes that the concerns raised by Petitioners regarding
potential monetary and competitive harm do not currently justify
maintaining the stay during the pendency of the Commission's
review.'' Id.
---------------------------------------------------------------------------
In ruling on the petition for review, the D.C. Circuit concluded
that the Approval Order did not ``represent the kind of reasoned
decisionmaking required by either the Exchange Act or the
Administrative Procedure Act,'' and therefore remanded the case to the
Commission for further proceedings.\4\ In so ruling, the court did not
reach any of petitioners' arguments that the Plan was inconsistent with
the substantive requirements of the Exchange Act, finding instead that
the Commission's failure to make the required findings under the Act
required a remand.\5\
---------------------------------------------------------------------------
\4\ Susquehanna Int'l Grp., LLP v. SEC, 866 F.3d 442, 443 (D.C.
Cir. 2017).
\5\ Id. at 446.
---------------------------------------------------------------------------
The court also considered whether to vacate the Approval Order
prior to remand, and decided not to vacate. As the court explained,
``the SEC may be able to approve the Plan once again, after conducting
a proper analysis on remand.'' \6\ Because both parties had assured the
court that it would be possible to unwind the Capital Plan at a later
time, and ``no party contends that the task would be materially more
difficult if done then rather than now,'' the court declined to vacate
the Capital Plan and instead remanded the case ``to give the SEC an
opportunity to properly evaluate the Plan.'' \7\ The D.C. Circuit's
mandate, which issued on August 18, 2017, returned the matter to the
Commission for further proceedings.\8\
---------------------------------------------------------------------------
\6\ Id. at 451.
\7\ Id.
\8\ By separate order of today's date, we are issuing a
scheduling order governing the proceedings on remand.
---------------------------------------------------------------------------
Petitioners \9\ now seek a partial stay of the Capital Plan--
specifically, a stay of the dividend payments to be made to the
shareholder exchanges under the Plan--while the Commission considers
the Plan as directed by the D.C. Circuit. OCC opposes the motion.
---------------------------------------------------------------------------
\9\ Petitioner KCG has not joined the instant motion.
---------------------------------------------------------------------------
In determining whether to grant a stay motion, the Commission
typically considers whether (i) there is a strong likelihood that the
moving party will succeed on the merits of its appeal; (ii) the moving
party will suffer irreparable harm without a stay; (iii) any person
will suffer substantial harm as a result of a stay; and (iv) a stay is
likely to serve
[[Page 44239]]
the public interest.\10\ The party seeking a stay has the burden of
establishing that relief is warranted.\11\ These factors weigh against
granting petitioners' stay request.
---------------------------------------------------------------------------
\10\ Bernerd E. Young, Exchange Act Release No. 78440, 2016 WL
4060106, at *1 (July 29, 2016); see also Order Preliminarily
Considering Whether to Issue Stay Sua Sponte and Establishing
Guidelines for Seeking Stay Applications, Exchange Act Release No.
33870, 1994 WL 17920, at *1 (Apr. 7, 1994).
\11\ Young, Exchange Act Release No. 78440, 2016 WL 4060106, at
*1.
---------------------------------------------------------------------------
First, with respect to likelihood of success on the merits, we note
that the court did not address petitioners' arguments that the Plan was
inconsistent with the Exchange Act. Rather, it remanded for the
Commission to ``properly evaluate the Plan.'' \12\ By repeating their
same arguments regarding consistency with the Act in support of a stay,
petitioners are asking the Commission to opine on their likelihood of
success before engaging in the further analysis directed by the court.
We are not yet in a position to do so. Unlike the more typical
situation in which the Commission addresses stay motions, here there is
neither a full record nor a final decision on which to base such an
analysis. Thus, we do not view this factor as weighing in favor of the
partial stay request.
---------------------------------------------------------------------------
\12\ 866 F.3d at 451.
---------------------------------------------------------------------------
Second, petitioners fail to establish that they will be irreparably
harmed in the absence of a stay. To demonstrate irreparable harm,
petitioners ``must show an injury that is `both certain and great' and
`actual and not theoretical.' '' \13\ ``A stay `will not be granted
[based on] something merely feared as liable to occur at some
indefinite time.' '' \14\ That ``an applicant may suffer financial
detriment does not rise to the level of irreparable injury warranting
issuance of a stay.'' \15\ Petitioners acknowledge that the monetary
aspects of the Plan ``are readily reversible'' \16\ and that the court
concluded that ``the task of unwinding the Plan would be no more
difficult if done after remand rather than immediately.'' \17\ They
nonetheless argue that ``[a] stay of the dividend is needed to prevent
distortion of the competitive landscape from continuing to harm
competition.'' \18\ But petitioners provide no evidence that
competitors will be ``driven from the marketplace'' or that investors
have ``lost liquidity,'' as petitioners claim.\19\ Thus, petitioners'
argument--which presumes they are correct on the merits regarding the
Plan's effect on competition--is too speculative at this stage to be
the basis for relief. We also note that petitioners made these same
arguments regarding competitive harm before the D.C. Circuit, yet the
court did not stay or vacate the Plan.
---------------------------------------------------------------------------
\13\ Kenny A. Akindemowo, Exchange Act Release No. 78352, 2016
WL 3877888, at *2 (July 18, 2016) (quoting Donald L. Koch, Exchange
Act Release No. 72443, 2014 WL 2800778, at *2 (June 20, 2014));
accord Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).
\14\ Akindemowo, 2016 WL 3877888, at *2 (quoting Koch, 2014 WL
2800778, at *2); accord Wis. Gas Co., 758 F.2d at 674.
\15\ Robert J. Prager, Exchange Act Release No. 50634, 2004 WL
2480717, at *1 (Nov. 4, 2004); see also William Timpinaro, Exchange
Act Release No. 29927, 1991 WL 288326, at *3 (Nov. 12, 1991)
(recognizing that ``[m]ere injuries, however substantial, in terms
of money, time, and energy necessarily expended in the absence of a
stay, are not enough'' to constitute irreparable harm) (quoting Va.
Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)).
\16\ Mot. at 1.
\17\ Mot. at 16.
\18\ Id.
\19\ Id. Petitioners cite the acquisition of BATS by CBOE
Holdings, Inc.--which, we note, closed on February 28, 2017--in
support of their argument, stating that there has been consolidation
in the exchange marketplace while the Capital Plan has been in
effect. But they supply no evidence of a causal relationship between
that acquisition and the Capital Plan or the dividends at issue.
---------------------------------------------------------------------------
Finally, petitioners have not demonstrated that the balance of harm
to others in the absence of a stay and the public interest favors a
stay. Petitioners argue that ``a stay would injur[e] nobody,'' \20\
because they are asking only to stay the dividend component of the
Plan. But even setting aside the impact on shareholder exchanges that
are due the dividends under the Plan, petitioners' claim that the
dividend component of the plan can be isolated is overly simplistic.
Under the Plan, ``OCC would not be able to pay a refund on a particular
date unless dividends were paid on the same date.'' \21\ A stay of the
dividends to the shareholders would thus have the effect of also
staying the payment of refunds to OCC's members.
---------------------------------------------------------------------------
\20\ Mot. at 16.
\21\ Exchange Act Release No. 74136 (Notice of Proposed Rule
Change) at 15, File No. SR-OCC-2015-02.
---------------------------------------------------------------------------
Moreover, as discussed above, the court squarely considered whether
to vacate the Plan or leave it in effect during the Commission's
reconsideration, and decided to leave the Plan, including the
provisions with respect to dividends, in place. Petitioners' request to
stay that part of the Plan therefore, in fact, seeks a change in the
status quo that we believe is unsupported at this time. Granting
petitioners' request would require piecemeal suspension of portions of
the Plan, while leaving others in place, despite at least the
possibility of having to reinstitute those provisions at a later date
if the Commission, after conducting the required analysis on remand,
should determine to approve the Plan. Indeed, the court implicitly
rejected this type of partial stay when petitioners proposed it in a
pre-decision letter to the court \22\ and the court remanded without
entering such a stay. We believe, as the court did, that the better
course is to leave the status quo in place while we conduct a further
review of the entirety of the Plan.
---------------------------------------------------------------------------
\22\ See Fed. R. App. P. 28(j) letter from petitioners, dated
April 17, 2017 (asking the court ``at a minimum, to stay operation
of the dividend component of the Plan during a remand'').
---------------------------------------------------------------------------
Accordingly, we decline to impose the partial stay requested.
For the reasons stated above, it is hereby:
Ordered that movants' request for a partial stay of the Capital
Plan while the Commission considers the Plan pursuant to the direction
of the D.C. Circuit is Denied.
By the Commission.
Brent J. Fields,
Secretary.
[FR Doc. 2017-20080 Filed 9-20-17; 8:45 am]
BILLING CODE 8011-01-P
